Ex Parte Phillips et al

Patent Trial and Appeal Board

May 11, 2018

13630290 (P.T.A.B. May. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/630,290 09/28/2012
48500 7590 05/15/2018
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
FIRST NAMED INVENTOR
Jonathan Robert Phillips
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
4366JKH-46 9265
EXAMINER
GLENNIE, DEBRA L
ART UNIT PAPER NUMBER
3689
NOTIFICATION DATE DELIVERY MODE
05/15/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
cjacquet@sheridanross.com
pair_Avaya@firsttofile.com
edocket@sheridanross.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHAN ROBERT PHILLIPS
and GREGORY D. WEBER
Appeal2017-002106
Application 13/630,290
Technology Center 3600
Before: BRADLEY W. BAUMEISTER, MICHAEL J. STRAUSS, and
NABEEL U. KHAN, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-002106
Application 13/630,290
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final rejection of claims 1-3, 6-11, 13-15, and 18-22. Final Act. 4.
Claims 4, 5, 12, 16 and 17 are canceled. Final Act. 2. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
The claims are directed to creating virtual groups for managing a
contact center. Spec., Title. Claim 1, reproduced below with formatting
added, is illustrative of the claimed subject matter:
1. A method comprising:
receiving, by a microprocessor, via a network, a first
communication from a first entity communication device;
placing, by the microprocessor, the first communication
into a contact center queue;
connecting, by the microprocessor, from the contact center
queue, the first communication from the first entity
communication device to a first agent terminal;
in response to connecting, from the contact center queue,
the first communication from the first entity communication
device to the first agent terminal, dynamically creating, by the
microprocessor, a first virtual group, wherein the first virtual
group comprises:
a first agent avatar representing a first agent;
a first monitoring avatar representing a person at a
supervisor/subject matter expert terminal;
a first entity avatar representing a first entity; and
a first virtual reality setting in a first virtual room;
receiving, by the microprocessor, via the network, a
second communication from a second entity communication
device;
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placing, by the microprocessor, the second
communication into the contact center queue;
connecting, by the microprocessor, from the contact center
queue, the second communication from the second entity
communication device to a second agent terminal;
in response to connecting, from the contact center queue,
the second communication from the second entity
communication device to the second agent terminal, dynamically
creating, by the microprocessor, a second virtual group, wherein
the second virtual group comprises
a second agent avatar representing a second agent and
a second entity avatar representing a second entity, in
a second virtual reality setting, wherein the second
virtual reality setting is a second virtual room,
wherein dynamically creating the first or second virtual
group is based on a skill set of a group of agents, wherein if an
agent terminal for a member of the group of agents is not
currently involved in a communication, an agent avatar for an
agent of the agent terminal not currently involved in a
communication is created in the first or second virtual group
without a corresponding entity avatar and wherein the agent
avatar without a corresponding entity avatar can monitor each of
the first and second communications; and
combining, by the microprocessor, the first virtual group
and the second virtual group, wherein combining the first virtual
group and the second virtual group results in the first virtual
room and the second virtual room being connected, and wherein
the first monitoring avatar can be virtually moved between the
first virtual room and the second virtual room.
REFERENCES
The following prior art is relied upon by the Examiner in rejecting the
claims on appeal:
Pickford
Walker et al.
("Walker")
US 2006/0062376 Al
US 2009/0251457 Al
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Mar. 23, 2006
Oct. 8, 2009
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Application 13/630,290
REJECTIONS
The Examiner made the following rejections:
Claims 1, 13 and 20 stand rejected under 35 U.S.C. § 112(b) as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which the inventor or a joint inventor regards as the invention. Final
Act. 2--4.
Claims 1-3, 6-11, 13-15, and 18-22 stand rejected under 35 U.S.C.
§ 101 as directed to a judicial exception and, thereby, non-statutory subject
matter. Final Act. 4--11.
Claims 1-3, 6-11, 13-15, and 18-22 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Walker and Pickford. Final
Act. 12-50.
ANALYSIS
We agree with Appellants' conclusions as to (i) the rejection of the
claims under 35 U.S.C. § 112(b) as being indefinite (App. Br. 24--26) and
(ii) the rejection of claim 21under35 U.S.C. § 103(a). App. Br. 32-33.
However, Appellants' arguments in connection with (i) the rejection of all
pending claims under 35 U.S.C. § 101 (App. Br. 11-24) and (ii) the rejection
of claims 1-3, 6-11, 13-15, 18-20, and 22 under 35 U.S.C. § 103(a) are
unpersuasive. App. Br. 25-32. In connection with the sustained rejections,
and as otherwise discussed below, we adopt as our own (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 4--50, 53-56) and (2) the reasons set forth by the Examiner
in the Examiner's Answer in response to Appellants' Appeal Brief (Ans. 2-
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18) and concur with the conclusions reached by the Examiner. We highlight
the following for emphasis.
35 U.S.C. § 112
The Examiner finds claims 1, 13, and 20 are rendered indefinite by
use of the term "combine" in describing a step resulting in the first and
second virtual rooms being connected such that a monitoring avatar can
move between the rooms. Final Act. 2-3. According to the Examiner,
combine means to become one and act together so that the spaces are no
longer independent but become one space. Final Act. 3. Thus, according to
the Examiner, as one integrated space, it "is unclear ... how the monitoring
avatar is performing a 'moved between' function, as the rooms are
'combined."' Id.
Appellants contend: (i) the claims self-define the term by reciting the
required result of combining the virtual groups and connecting the rooms;
(ii) the definitions adopted by the Examiner are inconsistent with use of the
term combine in the Specification; and (iii) even if contrary or inconsistent
with its ordinary meaning, Appellants are entitled to redefine the term if the
asserted meaning is clearly set forth in the Specification. App. Br. 24--26.
Appellants' arguments are persuasive. Although the Examiner might
find other terms more descriptive of the step (e.g., associate, join or bridge),
for the reasons argued by Appellants, use of the term "combine" does not
render the claims ambiguous or otherwise indefinite. In particular, in view
of the requirement that the rooms be connected to allow movement between
the rooms, as described by the claims and the Specification, characterizing
that results as a step of combining is not so offensive as to render the claims
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indefinite. In particular, we disagree with the Examiner the step of
combining the groups must result in loss of identity of the individual rooms
such that it is unclear how an avatar can move between rooms. Accordingly,
we do not sustain the rejection of claims 1, 13 and 20 under 35 U.S.C.
§ 112(b).
35 U.S.C. § 101
Under 35 U.S.C. § 101, a patent may be obtained for "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." Alice Corp. v. CLS Bank Int 'l, 134 S.Ct.
234 7, 23 54 (2014 ). The Supreme Court has "long held that this provision
contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable." Alice, 134 S.Ct. at 2354
(quoting Ass 'nfor Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)). The Supreme Court in Alice reiterated the two-step
framework previously set forth in Mayo Collaborative Services v.
Prometheus Laboratories, Inc., 566 U.S. 66 (2012), "for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts." Alice,
134 S.Ct. at 2355.
The first step in that analysis is to "determine whether the claims at
issue are directed to one of those patent-ineligible concepts," such as an
abstract idea. Id. The Court acknowledged in Mayo that "all inventions at
some level embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We, therefore, look
to whether the claims focus on a specific means or method that improves the
relevant technology or are instead directed to a result or effect that itself is
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the abstract idea and merely invoke generic processes and machinery. See
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016).
If the claims are not directed to an abstract idea, the inquiry ends.
Otherwise, the inquiry proceeds to the second step where the elements of the
claims are considered "individually and 'as an ordered combination[,]' to
determine whether the additional elements 'transform the nature of the
claim' into a patent-eligible application." Alice, 134 S.Ct. at 2355 (quoting
Mayo, 566 U.S. at 78-80).
STEP ONE OF ALICE/MAYO FRAMEWORK
Under the first step of the Alice/Mayo framework, the Examiner finds
the claims "are directed to an abstract idea of contact center management,
specifically, directed towards receiving a communication from an entity,
placing the entity into a queue, creating a group for the entity, assigning an
agent, and managing multiple requests for assistance across a
communication network." Final Act. 5. The Examiner supports the finding
that contact center management is an abstract idea, finding it is either (i) a
fundamental economic practice, (ii) a method of organizing human
activities, (iii) an idea of itself, or (iv) a mathematical relationship or
formula. Id.
Appellants argue the invention is not directed to (i) a fundamental
economic practice because it "is not a concept relating to the economy and
commerce, such as agreements between people in the form of contracts,
legal obligations, and business relations." App. Br. 15. According to
Appellants "[ w ]hile it is true that the claimed invention is directed to a
business servicing customer communications, this can hardly be considered
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to be a fundamental economic practice." Id. Appellants further argue
"[b ]ecause the claimed invention is directed to a virtual environment for
agent and customer communication devices to interact, it is not [(ii)] a
method of organizing human activities let alone a 'certain' method of
organizing human activities that is not patentable subject matter under the
Alice decision." App. Br. 14. Appellants further argue the invention is not
(iii) an idea of itself because it requires communications activities that
cannot be performed in a person's head. Id. According to Appellants
A person cannot abstractly think and create a virtual
environment. A person cannot abstractly monitor a
communications from a contact center queue because this
requires hardware (a microprocessor) to implement. A person
cannot create a virtual room based on a communication being
connected to an agent terminal. A person cannot render the
combined first and second virtual groups for display via a
computer display as required by claim 13.
App. Br. 15. Appellants further argue the invention is not (iv) a
mathematical relationship or formula because it does not include
mathematical concepts or calculations. Id.
The Examiner responds by directing attention to the admitted prior art
wherein, in managing a distributed contact center, a supervisor can no longer
physically traverse the facility to monitor center and agent operations.
Ans. 4. See also Ans. 5-9. The Examiner finds "Appellant[ s have] clearly
established that the invention is to manage a contact center and where the
Appellant[s'] invention is using computer technology as tools in managing
operations of call centers." Ans. 4. Thus, according to the Examiner, "[t]he
invention is directed to the abstract idea of organizing, storing and
transmitting information" consistent with (i) the "July 2015 Update: Subject
Matter Eligibility" to 2014 Interim Guidance on Subject Matter Eligibility
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(2014 IEG), 79 Fed. Reg. 74618 (Dec. 16, 2014) (hereinafter "July 2015
Update"), and (ii) Cybeifone Systems, LLC v. CNN Interactive Group, Inc.,
558 Fed. Appx. 988, 992 (Fed. Cir. 2014). Id. The Examiner further finds
the argued use of communication devices is simply another use of "computer
technology as a tool to manage and perform communications and contact
center operations using computers being operated by people such as agents
and supervisors in order to interact with customers." Ans. 6. Furthermore,
according to the Examiner, "it is old and well known in the art where
communications are monitored by supervisors/managers to ensure that
customers are receiving the proper responses to requests for service."
Ans. 7. Likewise, the Examiner explains other aspects of the claim are old
and were well known in the art including, e.g., the use of avatars to represent
parties participating in a dialog such as an online forum represented by a
virtual room. Ans. 7-8.
Appellants reply, arguing the claims "improve upon the existing
contact center queues queue management by providing a virtual environment
to manage communication from a contact center queue[, which] clearly
provides something more. Existing contact centers do not combine the use
of virtual reality and contact center queue management." Reply. 7.
As an initial matter, we are unpersuaded of error by Appellants'
characterization of the Court's decision in Alice as being based on
preemption of a preexisting and well known human activity by the claims
therein at issue. Appeal Br. 15-16. Although preemption may be the
concern driving the exclusion of abstract ideas from patent-eligible subject
matter, preemption is not the test for eligibility. "The Supreme Court has
made clear that the principle of preemption is the basis for the judicial
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exceptions to patentability" and "[ fJor this reason, questions on preemption
are inherent in and resolved by the § 101 analysis." Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015) (citing Alice,
134 S.Ct. at 2354).
We agree with the Examiner in finding the claims are directed to
"contact center management" and "managing contact center activities."
Final Act. 5. Although Appellants argue the claims "are directed to
managing received communications in a contact center and creating a virtual
environment to manage the received communications in parallel," (App.
Br. 19), the argued steps are but conventional activities performed in
operating a contact center, which necessarily include receiving
communications and visualizing communication status using, for example, a
virtual environment.
Appellants' Specification describes a problem that prior art tools
provided to allow a supervisor to select an agent to monitor calls in
geographically dispersed contact centers were "limited and sometimes
difficult to use." Spec. i-f 3. To address this issue, Appellants claim
providing a virtual reality setting wherein agents, supervisors/subject matter
experts, and callers (i.e., first and second entities) are represented by avatars
indicating which agents a supervisor can monitor and is currently
monitoring. Spec. i-f 4. However, other than pictorially depicting which of
the agents is being monitored, the virtual environment and avatars do not
otherwise provide any additional functionality or capability. As such, we
agree with the Examiner that monitoring the activities of others including,
for example, agents employed to provide a service, i.e., the monitoring of a
human activity, is a method of organizing human activities constituting an
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abstract idea. See e.g. July 2015 Update ("[C]ases have found concepts
relating to managing relationships or transactions between people
abstract.").
STEP Two OF ALICE/MAYO FRAMEWORK
Under step two of the Alice/Mayo framework, the Examiner finds
The claim[] does not include additional element[ s] that are
sufficient to amount to significantly more than the judicial
exception because the claim recited generic computer elements
(e.g. a microprocessor with computer readable medium) which
do not add a meaningful limitation to the abstract idea because
they would be routine in any computer implementation.
Final Act. 10. According to the Examiner, the invention merely links
generic devices to the abstract idea of contact center management by
establishing communications with parties, placing entities in queues, and
assigning and monitoring communications between entities. Id. The
Examiner adds "[Appellant] has not identified an improvement to the
microprocessor or an improvement to how the microprocessor functions."
Id. The Examiner further finds
The claims require no more than a generic computer to perform
generic computer functions that are well-understood, routine
and conventional activities previously known to the industry.
The managing of users on a communication system in order to
provide resources to the users are [no] more than organizing,
storing and transmitting information.
Final Act. 11 (emphasis omitted).
Appellants argue the claims recite more than "receiving, placing,
identifying, creating, sending, receiving, and sending data." App. Br. 17.
According to Appellants, the claims "create[] two virtual groups based on
connecting two separate communications from two entity communication
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devices from a contact center queue to two agent terminals." App. Br. 17.
Appellants further argue the claims require combining the groups so that a
supervisor can move a monitoring avatar between the agents. Id.
Appellants assert the steps of creating first and second groups, at least one
group dynamically created based on a skill set of a group of agents, and
combining the first and second groups to allow a supervisor avatar to move
between the first and second virtual rooms, are not disclosed by the prior art.
Appellants further assert:
The inventions claimed in claims 1, 13, and 20 improve another
technology or technical field (e.g., providing a virtual
environment that allows a supervisor to virtually monitor
multiple communication sessions in a virtual environment),
transform[] customer contacts into a different state or thing
(e.g., a set of virtual objects), and improve the functioning of
the computer itself (e.g., by enabling a supervisor the ability to
virtually monitor multiple communications in a virtual
environment at the same time).
App. Br. 18.
Appellants further argue the claims are unlike those found to be
ineligible in Alice; buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir.
2014); Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014); and
Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336
(Fed. Cir. 2013). App. Br. 19--20. According to Appellants, rather than
broadly and generically reciting the use of a generic network and a generic
computer, the claims recite routing of communications from an entity
communication device, to a contact center queue, and then to an agent
terminal for display in a novel virtual setting. Id.
Appellants instead analogize the claims to those held patent-eligible in
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) in
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which, by providing a specific way to automate the creation of a web page,
the claims were "necessarily rooted in computer technology in order to
overcome a problem specifically arising in the realm of computer networks."
App. Br. 21 (citing DDR Holding, 773 F.3d at 1257-58).
Like DDR Holdings, the methods and systems of claims 1, 13,
and 20 are necessarily rooted in computer technology to
overcome a problem specifically arising in the realm of contact
centers. The claims recite a specific contact center architecture
implementing a structure and interaction between various
hardware elements, including a microprocessor, an entity
communication device, an agent terminal, a network, a contact
center queue, and a virtual reality setting based on a skill set of
a group of agents.
App. Br. 21. Appellants further argue "the claims recite a specific way to
virtually automate the process of monitoring multiple communications
between entities and contact center agents at the same time." Id.
The Examiner responds, finding "using rooms or virtual spaces to
manage activities and to monitor activities [was] well known in the art at the
time of the invention and therefore is not 'significantly more."' Ans. 12.
The Examiner further finds the "significantly more" must be more than
adding a microprocessor "but rather an improvement to the [technical] field
itself." Id (citing Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir.
2016)).
The Examiner disputes Appellants' contention that the claims are
directed to providing a technological improvement as in Enfish, finding
"Appellant[ s have] not provided distinctions of the invention that improve
upon existing technology" and further finding Appellants' "generic
reference to the use of a microprocessor to be used in the invention simply
means the microprocessor is being used as a tool and [Appellants have] not
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identified where the invention is improving upon the technical field or the
equipment." Id. Contrary to Appellants' contention, the Examiner finds the
pending claims are similar to those found ineligible in buySafe and that
"Appellant[s'] analysis of DDR Holdings is not appropriate[,] as the
disclosure provides a general overview of the invention and further the
invention is not deeply rooted in the technology." Ans. 13.
Appellants do not persuade us that the Examiner erred in finding the
claims lack additional elements that are sufficient to amount to significantly
more than the judicial exception under step 2 of the Alice/Mayo framework.
In particular, Appellants' argument that the claims require specific
implementations of the various steps and functions performed by the
microprocessor fail to identify any improvement to another technology, i.e.,
an improvement to how the microprocessor performs or executes the
abstract idea identified in step 1 of Alice/Mayo framework. For example,
although asserting the functioning of the computer itself is improved "by
enabling a supervisor the ability to virtually monitor multiple
communications in a virtual environment at the same time" (App. Br. 18),
Appellants fail to identify any improvement specific to the computer rather
than an improvement to the underlying abstract idea of contact center
monitoring. Thus, we further disagree that the claims are unlike to those
found to be patent-ineligible in Alice, buySAFE, Ultramercial, and
Accenture.
We also are unpersuaded the claims are similar to those found eligible
in DDR. App. Br. 20-21. The claims in DDR Holdings were directed to a
"challenge particular to the Internet," and did not "broadly and generically
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claim 'use of the Internet' to perform an abstract business practice (with
insignificant added activity)." DDR Holdings, 773 F.3d at 1257, 1258.
For example, in DDR, the claims involved, inter alia, "web pages
displays [with] at least one active link associated with a commerce object
associated with a buying opportunity of a selected one of a plurality of
merchants." Id. at 1249 (claim 19 of US 7,818,399 Bl; issued to Ross, Jr.,
Oct. 19, 2010). There is nothing similar to such a web page with an active
link in Appellants' claim 1. Rather, all that claim 1 requires is the use of a
microprocessor to connect first and second communications from respective
entities to respective agent terminals of respective virtual groups, each
virtual group including avatars representing the associated entities in a
virtual room setting. That is, the claims are directed to connecting incoming
communications to an appropriate agent, allowing a supervisor to monitor
the communications, and visualizing or displaying the relationships of the
various entities using avatars, i.e., providing a graphical representation of
each entity such as a user, agent, or supervisor.
Appellants provide insufficient evidence or reasoning explaining why
any of these steps are other than conventional or are directed to a particular
technological challenge. Instead, we find, as in Alice, buySAFE,
Ultramercial, and Accenture, the argued additional elements are well-
understood, routine and conventional. Merely implementing a concept in a
particular technological environment, such as in a contact center, does not
confer patent eligibility on an otherwise abstract concept. See Versata
Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306, 1332 (Fed.
Cir. 2015) (citations omitted) ("[T]he prohibition on patenting an ineligible
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concept cannot be circumvented by limiting the use of an ineligible concept
to a particular technological environment.").
Accordingly, we sustain the Examiner's rejection of the claims under
35 U.S.C. § 101 as directed to patent-ineligible statutory subject matter.
35 U.S.C. § 103(a)
Claims 1, 13, and 20 (App. Br. 26-31)
Appellants contend neither Pickford nor Walker "teach[ es] or
suggest[ s] creation of a virtual group ... based on connecting a
communication from the contact center queue[,] as required by claim 1."
App. Br. 27. This contention is unpersuasive because it fails to address the
Examiner's findings and, instead, is an attack on the references individually.
"Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references." In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)).
The Examiner finds Walker's disclosure of (i) user initiated
communication with others, (ii) the grouping of people performing similar
tasks into the same dynamic virtual space, and (iii) the automatic creation of
a 3D space based upon a person's actions with the space populated with
resources associated with those actions and the participants represented as
avatars (Final Act. 15) collectively teaches or suggests "in response to
connecting, [ . .. ], the first communication from the first entity
communication device to the first agent terminal, dynamically creating Qy
the microprocessor, a first virtual group" (Final Act. 12). The Examiner
applies Pickford's disclosure of, inter alia, a customer call center identifying
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agents based on availability, skill sets, needs of the customer, etc. and
appropriate routing of the call (Final Act. 18) for the elements of the
disputed limitation missing from Walker (Final Act. 19) such that the
entirety of the disputed limitation is taught by the combination of Walker
and Pickford. Final Act. 20. Appellants fail to persuade us this combination
of Walker and Pickford, as described above, is deficient in teaching or
suggesting the disputed limitation.
In connection with Appellants' contention the combination of Walker
and Pickard is improper, the Examiner finds "it would have been obvious to
one of ordinary skill in the art at the time of the invention for Walker to use a
queue type system for managing interactions as disclosed by Pickford in
monitoring the virtual spaces and the resources to make available to the
virtual spaces." Final Act. 19 (emphasis omitted). Appellants contend,
because the problem solved by Pickard is different than that addressed by
the claimed invention, "[ t ]here is no motivation or suggestion in Pickford or
Walker to create a virtual group based on a communication being connected
from a contact center queue." App. Br. 27.
The Examiner responds that "KSR forecloses [A]ppellant[s'] argument
that a specific teaching is required for a finding of obviousness." Ans. 15
(citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007)). In defense
of the combination, the Examiner finds a lack of evidence that modifying
Walker to include the relied-upon features of Pickford would have been
uniquely challenging or difficult. Id. The Examiner finds one skilled in the
art instead would have made the combination "to manage virtual spaces
using a queue type system in order to more efficiently manage a customer
contact center." Id. at 16. The Examiner further finds "the improvements
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are no more than the predictable use of prior art elements according to their
established functions." Id.
We are not persuaded the Examiner erred in combining Walker and
Pickford in rejecting the claims. The Examiner's reason for "modify[ing]
the combination of Walker with the teachings of Pickford" (Ans. 16
(emphasis omitted)) need not address the same problem as that to which the
invention is directed. In re Kahn, 441F.3d977, 987 (Fed. Cir. 2006) (The
reason or motivation to modify the reference may often suggest what the
inventor has done, but for a different purpose or to solve a different problem.
It is not necessary that the prior art suggest the combination to achieve the
same advantage or result discovered by applicant.); Cross Med. Prods., Inc.
v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005)
("One of ordinary skill in the art need not see the identical problem
addressed in a prior art reference to be motivated to apply its teachings."); In
re Linter, 458 F.2d 1013 (CCPA 1972); In re Dillon, 919 F.2d 688 (Fed. Cir.
1990), cert, denied, 500 U.S. 904(1991).
Moreover, the Supreme Court has held, "[i]n determining whether the
subject matter of a patent claim is obvious, neither the particular motivation
nor the avowed purpose of the patentee controls." KSR Int'! Co, v. Teleflex,
Inc., 550 U.S. 398, 419 (2007). For a prima facie case of obviousness to be
established, the reference need not recognize the same problem solved by
Appellants. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Int.
1985) ("The fact that [Appellants have] recognized another advantage which
would flow naturally from following the suggestion of the prior art cannot
be the basis for patentability when the differences would otherwise be
obvious.").
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Appellants next contend the Examiner has failed to show the prior art
teaches or suggests the limitation of "wherein dynamically creating the first
or second virtual group is based on a skill set of a group of agents." App.
Br. 27. Appellants argue "Pickford does not disclose a virtual group being
created based on a skill set of a group of agents [or] the use of virtual
groups." Id. Appellants argue the application of Walker fails to overcome
the deficiencies of Pickford because Walker is not based on a contact center
or a contact center queue and does not otherwise disclose creating a virtual
group based on a skill set of a group of agents as required by claim 1. App.
Br. 28.
The Examiner finds "[t]he system of Walker allows for the system
[(i)] to filter resources based on factors such as user knowledge (skill set)"
(Final Act. 16 (emphasis omitted)) and (ii) to "evaluat[e] the resources that
have the knowledge (skill set) to assist with the appropriate request"
(Ans. 20). The Examiner further finds Pickford's customer call center
identifies agents based on, inter alia, skill sets (Final Act. 18) and manages
the number of call in a queue for a particular skill set of agents (App.
Br. 19).
Appellants fail to adequately address the Examiner's findings in
connection with the disputed limitation. Merely citing a claim limitation and
asserting it is not present falls short of identifying an error in the Examiner's
rejection as required on appeal. "Filing a Board appeal does not, unto itself,
entitle [Appellants] to de nova review of all aspects of a rejection." See Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (internal
citations omitted). Arguments must address the Examiner's action.
3 7 C.F.R. § 41.3 7 ( c )( 1 )(iv) ("The arguments shall explain why the examiner
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erred as to each ground of rejection contested by [Appellants]."); In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[T]he Board reasonably
interpreted Rule 41.3 7 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art."). "[I]t has long
been the Board's practice to require an applicant to identify the alleged error
in the examiner's rejections." In re Jung, 637 F.3d 1356, 1365---66 (Fed. Cir.
2011 ). The Board will not advocate for Appellants by scouring the record to
see ifthe Board can identify some flaw in the Examiner's findings of fact,
articulated reasoning, or legal conclusions. See, e.g., Halliburton Energy
Services, Inc. v. M-I LLC, 514 F.3d 1244, 1250 n.2 (Fed. Cir. 2008) ("'A
skeletal 'argument[,]' really nothing more than an assertion, does not
preserve a claim."') (citation omitted). Accordingly, Appellants' contentions
are insufficient to persuade us of reversible Examiner error.
Appellants also allege error in connection with the claim limitation,
"wherein the first monitoring avatar can be virtually moved between the first
virtual room and the second virtual room." Final Act. 13-14. In this regard,
the Examiner finds Walker's toggling of team spaces by a monitoring person
so as to view other virtual spaces and see details of the activities within
those spaces (including member activity) and the movement of a user's
associated avatar or representation in the virtual world from room to room
(Final Act. 16-17) teaches or suggests the stated result of the disputed
limitation. Id. Appellants contend Walker's toggle function does not
disclose the rooms are connected because the rooms remain separate and are
displayed separately. App. Br. 28. Instead, according to Appellants, "when
the user toggles to a new room, which is a separate space, the user's avatar is
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moved into the new room." Id. The Examiner responds "the rooms are
connected as the user is able to move between connected communications."
Ans. 16 (emphasis omitted).
We are not persuaded of Examiner error. During examination, claims
are given their broadest reasonable interpretation consistent with the
specification. See In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004). "Construing claims broadly during prosecution is not
unfair to the applicant ... because the applicant has the opportunity to
amend the claims to obtain more precise claim coverage." Id.
The disputed limitation requires the connection of, not physical rooms
or spaces but, virtual rooms. Unlike physical rooms, which may be
connected by a doorway, hallway, or other path between the rooms, it is not
self-evident what is meant by connecting virtual rooms, which exist only in
the memory of a computer, i.e., virtually. As to such virtual environment,
Appellants have provided insufficient evidence or persuasive argument that
the step of connecting virtual rooms is not fully satisfied by the wherein
clause of claim 1 specifying the desired result, i.e., providing a process by
which an avatar can be virtually moved between virtual rooms. We are not
persuaded the rooms are not connected because the rooms are displayed
separately. Such argument is not commensurate in scope with the argued
limitation. Instead, under a broad but reasonable interpretation of the
disputed limitation, we agree with the Examiner in finding Walker's toggle
function, which moves an avatar from room to room, teaches or suggests the
argued limitation.
Appellants further contend error in the Examiner's alternative claim
interpretation concluding the subject matter included in various "wherein"
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clauses are recitations of intended use that are non-functional descriptive
subject matter that do not limit the scope of the claims. App. Br. 29--31.
Because we are unpersuaded by Appellants' arguments that the combination
of Pickford and Walker is either improper or deficient in teaching or
suggesting the disputed limitations including those recited by the subject
wherein clauses, we do not decide whether the Examiner's alternative claim
interpretation is improper.
For the reasons discussed above, we are unpersuaded the Examiner
erred in rejecting independent claim 1 or, for the same reasons, independent
claims 13 and 20. Accordingly, we sustain the rejection of independent
claims 1, 13, and 20 under 35 U.S.C. § 103(a) over Walker and Pickford.
Claims 2, 3, 6-10, 14, 15, 18, and 19 (App. Br. 31-32).
Appellants do not separately argue the rejection of dependent claims
2, 3, 6-10, 14, 15, 18, and 19. App. Br. 31-32. Accordingly, we sustain the
rejection of those claims under 35 U.S.C. § 103(a) over Walker and Pickford
for the reasons set forth above in connection with their based independent
claims 1 and 13 .
Claim 11 (App. Br. 32)
Dependent claim 11 recites "[ t ]he method of claim 1, wherein, based
on a defined attribute, the monitoring avatar is presented in a view that is
shown to a supervisor and the monitoring avatar is not displayed in a view
that is presented to the agent." The Examiner finds: (i) Walker's "ghost"
display of a user associated with an activity, but who is not logged into the
system; or (ii) Walker's ghost display of a monitoring user teaches or
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suggests the disputed limitation of claim 11. Final Act. 26. Appellants
contend, in either case, Walker's ghost is displayed to each user; there is no
disclosure of displaying the ghost to a specific user and not to others. App.
Br. 32.
The Examiner responds, finding "Walker discloses[] in par. 0043
[that] the participant can be displayed as a ghost or semi-transparent avatar.
Walker does not disclose the monitoring avatar has to be represented by an
avatar[,] merely that the invention can represent a monitoring avatar."
Ans. 17 (emphasis added). The Examiner further finds
Id.
it is well known in the art of computing and monitoring of
computer technology, that monitoring computer activities of
employees is performed without any designation or notification
or alert or any other means. In other words, monitoring of
computer activity and employees using computing devices
[was] a common practice without providing any indication that
monitoring is being performed. The Examiner asserts this is a
well-known practice in the art to perform monitoring of
computer activity without notifying users of the monitoring
activity.
Appellants contend claim 11 requires more than not notifying
employees that they are being monitored, further specifying that "based [on]
a defined attribute, the monitoring avatar is presented in a view that is shown
to a supervisor and the monitoring avatar is not displayed in a view that is
presented to the agent." Reply Br. 12. Appellants argue, in Walker, "[t]he
ghost avatar is still presented to the user (i.e., the agent of claim 11 ), which
is contrary to what claim 11 requires." Id.
We are unpersuaded by Appellants' argument. Walker not only
suggests it is optional whether to display a user who is not logged into the
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system, but that what is displayed may be in the form of a ghost, i.e., "a
slight trace or vestige of something." See The American Heritage
Dictionary of the English Language 555 (Morris ed., 1981). Thus, we agree
Walker teaches or suggests display of some avatars to some users and not to
others including the display of a user avatar only to the associated user (e.g.,
supervisor) and not to other users. Accordingly, we sustain the rejection of
claim 11 under 35 U.S.C. § 103(a) over Walker and Pickford.
Claim 21 (App. Br. 32-33)
Dependent claim 21 recites
The method of claim 1, further comprising:
detecting, by the processor, in a third communication, at
least one of a gesture and a facial recognition, wherein the third
communication is a video call; and
in response to detecting the at least one of the gesture and
the facial recognition in the third communication, creating, by
the processor, a third virtual group.
The Examiner finds Walker discloses monitoring user gestures to
identify users who do not want to be bothered (Final Act. 50 (citing Walker
i-f 38)) and the reconfiguration of spaces based on information regarding
context and content and user activity. Id (citing Walker i-fi-124, 31 ).
Appellants argue Walker's gesture detection has nothing to do with creating
virtual space, only to whether a user should be bothered. App Br. 3 3.
Appellants' argument is persuasive. The Examiner does not explain
why the separate disclosures of Walker should be combined so as to teach or
suggest to one skilled in the art that gesture detection be used as a basis to
create a third virtual group. Accordingly, we do not sustain the rejection of
dependent claim 21under35 U.S.C. § 103(a) over Walker and Pickford.
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DECISION
We reverse the Examiner's decision to reject claims 1, 13, and 20
under 35 U.S.C. § 112(b).
We affirm the Examiner's decision to reject claims 1-3, 6-11, 13-15,
and 18-22 under 35 U.S.C. § 101.
We affirm the Examiner's decision to reject claims 1-3, 6-11, 13-15,
18-20, and 22 under 35 U.S.C. § 103(a).
We reverse the Examiner's decision to reject claim 21under35
U.S.C. § 103(a).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, we affirm the Examiner's decision rejecting
claims 1-3, 6-11, 13-15, and 18-22. See 37 C.F.R. § 41.50(a)(l).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED
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